Swisher v. Porter County Sheriff's Department

Filing 261

OPINION AND ORDER GRANTING 240 MOTION FOR LEAVE TO AMEND CLAIM 1 Pro Se Complaint by Plaintiff Randy Marvin Swisher; DIRECTING the clerk to separately docket the amended complaint ( 240 -1) with the Affidavit of Facts ( 246 ) as an attachment t o the amended complaint; GRANTING Pla leave to proceed against Dr. Nadir H. Al-Shami, Sheriff David Lain, and Warden John Widup in their individual capacities, as outlined in Order; GRANTING Pla leave to proceed against Porter County Sheriff's D epartment and Advanced Correctional Healthcare Corporation, for compensatory and punitive damages, as outlined in Order; DISMISSING all other claims; DISMISSING Two Unknown Liability Insurance Companies; DIRECTING the clerk to transmit the summons a nd USM-285 for Advanced Correctional Healthcare Corporation to the USMS along with a copy of the amended complaint 240 , the Affidavit of Facts 246 , and this order; DIRECTING the USMS, pursuant to 28:1915(d), to effect service of process on Adva nced Correctional Healthcare Corporation; and ORDERING, pursuant to 42:1997e(g)(2) and Fed. R. Civ. P. 6(b)(1)(A), that Dr. Nadir H. Al-Shami, Sheriff David Lain, Warden John Widup, Porter County Sheriff's Department, and Advanced Correctional Healthcare Corporation respond by 2/4/2016, as provided for in the Fed R of Civ P and N.D. Ind. L.R. 10-1(b), only to the claims for which the pla has been granted leave to proceed in this screening order. Signed by Magistrate Judge Christopher A Nuechterlein on 11/4/2015. (lhc)(cc: Pla and USMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RANDY MARVIN SWISHER,
Plaintiff,
vs.
PORTER COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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CAUSE NO. 3:10-CV-337

OPINION AND ORDER
This matter is before the court on the “Motion for Leave to Amend Claim” filed by
Randy Marvin Swisher, a pro se prisoner on July 20, 2015. The defendants did not object to
the motion. Pursuant to Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely
give leave [to amend] when justice so requires.” Nevertheless, pursuant to 28 U.S.C. §
1915A, the court must review the merits of a prisoner complaint. “A document filed pro
se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted).
In addition to the amended complaint, Swisher also filed an “Affidavit of Facts for
Plaintiff’s Claim No. 3:10-CV-337” which provides the factual basis for his claims. Swisher
alleges that in late March or April 2008, he developed a hernia following surgery for a
gunshot wound to the stomach. He alleges that Dr. Nadir H. Al-Shami examined him, but
refused to provide any treatment and refused to allow him to obtain treatment from

anyone else. He alleges that Dr. Al-Shami told him that it would be a violation of policy to
treat the hernia unless it was life-threatening. He alleges that Dr. Al-Shami told him that
it would be a violation of policy to permit another doctor to see him. Despite those alleged
policies, Swisher alleges that on a later unspecified date, Dr. Al-Shami prescribed an Ace
Bandage (and eventually a hernia belt) as treatment for the hernia. Swisher alleges that he
and others told Sheriff David Lain and Warden John Widup that Dr. Al-Shami had refused
to provide treatment for his hernia, back pain, sinus headaches, foot pain, and posttraumatic stress disorder caused by his reaction to skin cancer and surgeries. He alleges
that he was told by unnamed jail staff that it was a violation of policy to prescribe over-thecounter pain medications or for him to have two mattresses.
Swisher alleges that these events occurred while he was a pre-trail detainee at the
Porter County Jail. Therefore his claims arise under the Fourteenth Amendment. “In
evaluating the constitutionality of conditions or restrictions of pretrial detention . . . the
proper inquiry is whether those conditions amount to punishment of the detainee.” Bell v.
Wolfish, 441 U.S. 520, 535 (1979). “[I]n the absence of an expressed intent to punish, a
pretrial detainee can nevertheless prevail by showing that the actions are not ‘rationally
related to a legitimate nonpunitive governmental purpose’ or that the actions ‘appear
excessive in relation to that purpose.’” Kingsley v. Hendrickson, 576 U.S. __, __; 135 S.Ct.
2466, 2473 (2015) (quoting Bell). However, when judging what is rationally related or what
is excessive, “prison administrators [are] accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to preserve
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internal order and discipline and to maintain institutional security.” Bell, 441 U.S. at 547.
Inmates are entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). But
they are “not entitled to demand specific care[, nor are they] entitled to the best care
possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Swisher is suing Dr. Nadir H. Al-Shami, Sheriff David Lain, and Warden John
Widup for denying him medical treatment. Here, Swisher’s allegations plausibly allege that
the denial of medical treatment was excessive or not rationally related to a legitimate
nonpunitive governmental purpose. Therefore Swisher will be granted leave to proceed
against Dr. Nadir H. Al-Shami, Sheriff David Lain, and Warden John Widup for denying
him medical treatment for his hernia, back pain, sinus headaches, foot pain, and posttraumatic stress disorder caused by his reaction to skin cancer and surgeries.
Swisher is also suing the Porter County Sheriff’s Department and Advanced
Correctional Healthcare Corporation based on policies which he alleges have caused him
injury. Pursuant to Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) a
municipality can be sued based on a policy. A private company performing a
governmental function can also be held liable to the same extent as a municipal entity
under Monell. Hahn v. Walsh, 762 F.3d 617, 640 (7th Cir. 2014). Therefore Swisher will be
granted leave to proceed against Porter County Sheriff’s Department and Advanced
Correctional Healthcare Corporation for having policies which preclude: treatment of a
non-life-threatening hernia, treatment of inmates by non-jail doctors, prescription of overthe-counter pain medications, and issuing two mattresses to an inmate.
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Finally, Swisher is suing “Two Unknown Liability Insurance Companies.” However,
because “[h]e cannot sue the tortfeasor’s insurance company directly . . .” Donald v. Liberty
Mut. Ins. Co., 18 F.3d 474, 480 (7th Cir. 1994), he will not be granted leave to proceed against
these defendants and they will be dismissed.
Pursuant to 28 U.S.C. § 1915(d), the court is required to serve the defendants.
However, because Dr. Nadir H. Al-Shami, Sheriff David Lain, Warden John Widup, and
Porter County Sheriff’s Department have already appeared by counsel, it is unnecessary
to direct the United States Marshal Service to serve the them. Advanced Correctional
Healthcare Corporation has not entered an appearance, therefore the Marshals Service will
be directed to serve it.
For these reasons, the court:
(1) GRANTS the motion to amend (DE 240);
(2) DIRECTS the clerk to separately docket the amended complaint (DE 240-1) with
the Affidavit of Facts (DE 246) as an attachment to the amended complaint;
(3) GRANTS Randy Marvin Swisher leave to proceed against Dr. Nadir H.
Al-Shami, Sheriff David Lain, and Warden John Widup in their individual capacities for
compensatory and punitive damages for denying him medical treatment for his hernia,
back pain, sinus headaches, foot pain, and post-traumatic stress disorder caused by his
reaction to skin cancer and surgeries, in violation of the Fourteenth Amendment;
(4) GRANTS Randy Marvin Swisher leave to proceed against Porter County
Sheriff’s Department and Advanced Correctional Healthcare Corporation for
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compensatory and punitive damages for having policies which preclude: treatment of a
non-life-threatening hernia, treatment of inmates by non-jail doctors, prescription of overthe-counter pain medications, and issuing two mattresses to an inmate, in violation of the
Fourteenth Amendment;
(5) DISMISSES all other claims;
(6) DISMISSES Two Unknown Liability Insurance Companies;
(7) DIRECTS the clerk to transmit the summons and USM-285 for Advanced
Correctional Healthcare Corporation to the United States Marshals Service along with a
copy of the amended complaint (DE 240-1), the Affidavit of Facts (DE 246), and this order;
(8) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d),
to effect service of process on Advanced Correctional Healthcare Corporation; and
(9) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2) and Fed. R. Civ. P. 6(b)(1)(A), that
Dr. Nadir H. Al-Shami, Sheriff David Lain, Warden John Widup, Porter County Sheriff’s
Department, and Advanced Correctional Healthcare Corporation respond by February 4,
2016, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b),
only to the claims for which the plaintiff has been granted leave to proceed in this screening
order.
SO ORDERED.
Dated this 4th Day of November 2015.
S/Christopher A. Nuechterlein
Christopher A. Nuechterlein
United States Magistrate Judge

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